On February 20, 2013, the Supreme Court announced its
decision in Gunn v. Minton. There the Court revisited the scope of statutory
“arising under” jurisdiction in the context of a legal malpractice suit
premised on alleged attorney errors committed in a prior patent litigation. The
significance of the decision transcends the specific context in which it arose.
Although Gunn involved patent law arising under jurisdiction, 28 U.S.C. §1338,
that jurisdictional standard is interpreted in precisely the same manner as the
identically worded §1331 standard. Hence, the decision in Gunn applies to a
full range of federal question cases in which a federal issue is embedded in a
state-law claim. In addition, Gunn provides insight into the ongoing clash
between principle and docket-management concerns that has become so
characteristic of Supreme Court decisions in the realm of procedure.

The Gunn opinion was much anticipated by the legal community since prior
decisions by the Court had generated considerable confusion as to the scope of
arising under jurisdiction in so-called “federal-ingredient” cases. Some
commentators hoped that the Court would adopt the creation test as the
exclusive measure of jurisdiction. Others hoped for a clarification of the
federal-ingredient test. Still others, like this author, hoped that the Court
would redirect the jurisdictional analysis to the traditional fundamental
principles that once animated federal question jurisdiction. As I explain in my
article, everyone will be disappointed by the result.

The specific jurisdictional issue in Gunn focused on what had come to be known
as the third and fourth prongs of the “Grable test,” namely, whether the
federal ingredient embedded in the plaintiff’s state-law claim was substantial
and whether the exercise of jurisdiction over that claim would upset the
congressionally mandated balance between federal and state courts. Lower courts
had been struggling with the interpretation and application of both prongs.
Some had adopted detailed and highly technical doctrinal tests that led to
counterintuitive results where jurisdiction was denied over concededly
“significant” federal questions. Others had adopted a more holistic approach,
seemingly designed to apply Grable test and, at the same time, avoid that
test’s obvious strictures.Some lower courts actually confessed that the
jurisdictional determination was subjective and speculative and that, under
similar circumstances, different judges might reach different conclusions.
While the Gunn Court did address both Grable prongs, it did little other than
endorse its previous iterations of those elements, providing neither a defense
for them nor a principled method through which they might be applied. Thus,
much of the confusion over federal jurisdictional standards that preceded Gunn
remains largely unresolved.

In this article, I begin by assessing the development of statutory arising
under jurisdiction from its nineteenth century roots to the Court’s most recent
decisions. Here I examine the fundamental-principles compass that was developed
by the Court in foundational arising-under cases, and synthesized succinctly by
Justice Cardozo in Gully v. First Nat. Bank in Meridian. There the Court
endorsed a unified jurisdictional theory that focused on the role of the
federal issue in the case, asking whether the case was truly about federal law,
for if the case was truly about federal law, the exercise of jurisdiction would
be inherently consistent with congressional intent to provide a forum for
federal question cases.

With this fundamental-principles model as my foundation, I then examine more
recent arising-under cases and show that, beginning in the 1980s, the compass
got lost and was replaced by a maze of increasingly complex doctrinal tests
disconnected from logical and well-established jurisdictional principles. Here
the focus shifted from the federal nature of the controversy to a policy-driven
model weighted heavily toward case-management concerns.

Gunn offered the Supreme Court an opportunity to recapture the compass or, at
the very least, to provide a comprehensible map that would assist lower federal
courts in navigating the judicially created maze. The Court, however, missed
that opportunity. Instead, the Court continued along a meandering doctrinal
path that diverges from the fundamental principles of jurisdiction and often
leads to results inconsistent with the congressionally mandated goal of
providing a federal forum for the interpretation and application of the
principles of federal law.